Joint Committee on the Draft Mental Incapacity Bill Memoranda


Below is a summary of our concerns. However we wish to stress at the outset that we welcome publication of a draft Bill and look forward to a Bill being introduced to Parliament in the near future.

Summary of concerns:

1.  Best Interests

We consider the Scottish 'general principles' are more appropriate and less paternalistic and prescriptive. The Bill should make the intention of the legislation more clear ie, That it is not intended to interfere with a person's own decision making where they are able to do this. The Bill needs to show that it intends to encourage supported decision-making and regulate substitute decision-making where this is appropriate.

2.  Public Law duty to investigate suspected abuse and exploitation

We consider the Bill has missed an opportunity to provide adequate safeguards for the physical (and financial) safety of vulnerable adults and that Social Services and appropriate NHS bodies should be vested with similar powers and duties as those contained in the Children Act 1989.

3.  Problems with General Authority

We welcome this practical provision but take the view that the proposals do not provide sufficient safeguards for carers or individuals. Nor are the powers under a general authority sufficiently defined.

4.  Problems with Lasting Powers of Attorney

The Law Society have identified several technical difficulties with the Bill

5.  Alternative Dispute Resolution and the Code of Practice

These topics are pervasive and are raised throughout the submissions

6.  Reasonable Belief

We consider that the test of reasonableness of a person's belief about a person with impaired capacity should be an objective one.

7.  Assessment of capacity

The BMA/Law Society guidance may be incorporated into a code of practice, and that any assessment procedure should avoid bureaucracy and over medicalisation.

8.  High Court Powers

The Law Society considers the new Court of Protection should have its' powers specified to increase access to justice for those unable to pay legal advice.

9.  Legal Advice and Assistance

The objectives of this Bill will be wholly undermined without adequate public funding.

10.  Human Rights compatibility

Several potential conflicts are identified

11.  Interface with Mental Health Legislation

Several overlaps are identified along with suggested ways of dealing with it.

12.  Mutual Recognition of other jurisdictions

This needs to be specified in the Bill

13.  Fees

Consultation group should be wider

14.  Miscellaneous

previous page contents next page

House of Lords home page Parliament home page House of Commons home page search page enquiries index

© Parliamentary copyright 2003
Prepared 20 October 2003